Obaidullah and others vs The State and others

MUHAMMAD HASHIM KHAN KAKAR, J.---This common judgment will dispose of Criminal Jail Appeals Nos.52 and 54 of 2018, Criminal Revision Petition No.44 of 2018, Criminal Acquittal Appeal No.337 of 2018 and Murder Reference No.05 of 2018, arising out of judgment dated 31st October 2018 (the "impugned judgment "), passed by the Sessions Judge, Pishin (the "trial Court "), whereby appellant Zubair Ahmed son of Nizamuddin was convicted and sentenced under section 302(b) of the Pakistan Penal Code, 1860 (P.P.C.) to suffer death as Tazir; whereas, appellant Obaidullah son of Samiullah was convicted and sentenced under section 302(b), P.P.C. to suffer imprisonment for life as Tazir. Both the appellants were directed to pay compensation of Rs.600,000/- each to the legal heirs of deceased or in default whereof to suffer RI for six months each, with benefit of section 382-B, Cr.P.C.

2. The complainant Wali Jan has filed Criminal Revision Petition No.44 of 2018 for enhancement of sentence awarded to the appellant Obaidullah and Criminal Acquittal Appeal No.337 of 2018 against the acquittal of accused/respondent Rafiullah; whereas the State has sent the Murder Reference No.05 of 2018.

3. Abdul Raziq son of Mano Jan, hereinaf ter referred to as the deceased, left home on 11.06.2018. Upon failure to return, his disappearance was reported by his relatives on 22.06.2018. On the fateful day i.e. 22.06.2018, the dead body of deceased Abdul Raziq was found by the Levies Officials in a flood-water stream, which was subsequently identified by the uncle of deceased viz. Haji Saleh Muhammad and in this regard formal FIR No.28 of 2018 was lodged at Levies Headquarter , Pishin. In consequence of said FIR, the appellants Zubair Ahmed, Ubaidullah and Rafiullah (since acquitted) were arrested. Upon their disclosure the crime weapon was recovered from one Khalil- ul-Rehman. It is in this backdrop that the appellants along with co-accused Rafiullah were indicted before the Court; whereas, fourth accused Molima Fatima daughter of Abdul Qayum is still away from law .

4. We have heard learned counsel for the parties and also perused the available record, which reveals that there is no direct evidence of the crime in question and the whole edifice of the prosecution case has been structured upon the circumstantial pieces of evidence i.e. disclosures of appellants followed by the recovery of crime weapon, corroborated by positive report of Forens ic Science Laboratory and judicial confe ssion of appellants recorded by PW-8 Anas Gul, Judicial Magistrate-I, Pishim under section 164, Cr.P.C. It is settled by now that in such like cases every circumstance should be linked with each other and it should form such a continuous chain that its one end touches the dead body and other to the neck of the accused. But if chain link is missing then its benefit must go to the accused.

5. As stated above, there is no direct evidence of the crime in question and the main evidence on the basis of which the appellants were found guilty of the charges were their own confessional statements. The corroborative evidence produced by the prosecution to prove the facts relating to the occurrence in which an innocent person, who also happened to be "Hafiz-e-Quran " was killed, may not be independently sufficient to prove the charge against the appellants and establish their participation in the occurrence, however , if combined together , provide a strong chain of circumstances, leading to the conclusion that it was the appellants, who had committed the murder of deceased. The main ground weighed with the learned trial Court while convicting the appellants is their own confessional statements, as such, an essential question for consideration in this case would relate to the admissibility of the confessions and its evidentiary value for the purpose of conviction. We are conscious of the fact that both the confessions have been retracted by the appellants, however , it is by now settled that a retracted confession either judicial or extra judicial if is found truthful and confidence inspiring and also qualifies the test of voluntariness, can be used for conviction without looking for any other sort of corroboration. There is no cavil to the general rule that it is not prudent to base the conviction in a criminal case only on the strength of retracted confession without independent corroboration and necessary particulars and the Court is under obligation to inquire into all the material points and surrounding circumstances to satisfy itself regarding the truthfulness and voluntariness of the confession but it is not an inflexible rule that the retracted confession cannot be made basis of conviction without independent corroboration rather the rule of corroboration is a rule of abundant caution which is insisted only to exclude any possibility of doubt qua the guilt of a person. The law is that a retracted confession can be legally taken into consideration against the maker if the confession is found true and voluntary and can also be used as a sole evidence for conviction without any corroboration if the Court is satisfied about its voluntary character and truthfulness.

6. In the case at hand, it is established from the testimony of PW-8, Judicial Magistrate-I, Pishin, who recorded the confessional statements of appellants Zubair Ahmed and Ubaidullah that the judicial confessions made by the appellants were voluntary and true and the procedural defect, if any, in recording the statements stood removed by the question put by the Magistrate to the appellants to the effect that they were not bound to make any statement and if a confessional statement was made by them, the same could be used against them as evidence. It is pertinent to mention here that the appellants did not directly or D indirectly take the plea before the trial Court at any stage that the confessions were involuntary . Undoubtedly , the appellants had retracted their confessions, but the same could be relied upon, because the events disclosed by them for the purpose of commission of crime in their confessional statements including the manner adopted by them was fully corroborated by prosecution evidence available on record. The appellants had also disclosed the motive of killing the deceased indicated that their confessions were voluntary and true and the same could not be discarded for the sole reason of having been recorded after six/seven days in view of the facts and circumstances of the case.

7. So far as the alleged disclosures of appellants is concerned, it may be stated that as provided by Articles 37, 39 of the Qanun-e-Shahadat Order , 1984, a confession made by an accused person, while he is in police custody , is not admissible. However , if something related to the case is recovered or any fact is discovered in consequence of information conveyed by accused person, then the information so received would be admissible in evidence within the purview of Article 40 of the Qanun-e-Shahadat Order , 1984 because then the presumption would be towards its truthfulness but if nothing in consequence of the disclosure is recovered or discovered then the information so received by itself would not be admissible.

8. Now turning towards the recovery of crime weapon, in this regard, it is to be noted that in pursuance of the disclosures made by the appellants the crime weapon was recovered from possession of one Khalil-ul-Rehman and the said pistol along with the empties secured from the place of occurrence were sent for the report of Ballistic Expert. The Ballistic Expert Report has been produced as Ex.P/10-K, which shows that the crime empties were fired from the pistol recovered from the possession of one Khalil-ul-Rehman in pursuance of the disclosures made by the appellants.

9. These circumstances exclude every hypothesis of their innocence and thus the learned trial Court has rightly relied upon the aforementioned pieces of circumstantial evidence, there being no space to entertain any hypothesis of innocence, guilty verdict calls for no interference, the appeals fail.

10. So far as the question of quantum of sentence is concerned, we have particul arly attended to the sentence of death passed against the appellant Zubair Ahmed and have noticed some peculiarities of this case, warranting exercise of discretion in the matter of his sentence of death. In this regard we have noticed that though all the other formalities required by the law viz. a viz. recording confessional statement under section 164, Cr.P.C. had been duly complied with, yet the same were recorded after a delay of six/seven days. This was an irregularity not vitiating the confessional statement itself but putting the Court to caution. Similarly , the offence in question seems to be committed by appellant Zubair Ahmed under the influence of absconding accused Moalima Fatima on account of his liaison with her, taken from this angle, alteration of death penalty into imprisonment for life would be a conscionable wage in the circumstances. Consequently , penalty of death awarded to appellant Zubair Ahmed is altered into imprisonment for life while the amount of fine and compensation is kept intact.

With the above modification, Criminal Jail Appeals Nos.52 and 54 of 2018 along with Criminal Revision Petition No.44 are dismissed and Murder Reference is answered in negative. So far as the Criminal Acquittal Appeal No.337 of 2018 is concerned, it may be noted that there is absolutely no evidence against the respondent Rafiullah except his extra-judicial confession recorded during police custody , which is also exculpatory in nature, therefore, the learned trial Court has rightly acquitted him of the charge, as such, the appeal being without merit is dismissed.